Hammond v. EM Specialists, P.A. et al

Filing 119

MEMORANDUM AND ORDER granting in part and denying in part 74 Motion in Limine; granting in part and denying in part 77 Motion in Limine; granting in part and denying in part 78 Motion in Limine. Signed by Magistrate Judge K. Gary Sebelius on 7/2/15.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MAURA HAMMOND,
Plaintiff,
v.
EM SPECIALISTS, PA,
a Kansas Professional Corporation,
SHARON L. MATURO, M.D., and
CARRIE A. GROUNDS, M.D.,
Defendants.

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Case No. 13-2348-KGS

ORDER ON MOTIONS IN LIMINE
This matter comes before the court upon Plaintiff’s Motion in Limine (ECF No. 78),
Defendant EM Specialists P.A.’s Motions in Limine (ECF No. 74), and Defendants Sharon L.
Maturo, M.D., and Carrie A. Grounds, M.D.’s Motions in Limine (ECF No. 77). On July 1,
2015, the parties submitted a written statement to the court regarding their efforts to resolve the
motions in limine, which included the withdrawal of several motions, as noted below. The court
addresses each of the motions below.
Motions in limine “aid the trial process by enabling the Court to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues that are definitely set for trial,
without lengthy argument at, or interruption of, the trial.”1 However, the court is often better
situated during trial to determine the value and utility of evidence, and therefore, “some courts
defer making in limine rulings unless the evidence is clearly inadmissible on all potential
grounds.”2

1

Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal quotations omitted).

2

Koch v. Koch Indus., Inc., 2 F. Supp. 2d 1385, 1388 (D. Kan. 1998).

“Denial of a motion in limine does not necessarily mean that all evidence contemplated
by the motion will be admitted at trial.”3 Additionally, a ruling in limine does not “relieve a
party from the responsibility of making objections, raising motions to strike or making formal
offers of proof during the course of trial.”4 At trial, the court may alter its limine ruling based on
developments at trial or on its sound judicial discretion.5
A.

Ms. Hammond’s Motion in Limine (ECF No. 78)
1. References to the size and clients of the law firm representing Ms. Hammond
Ms. Hammond asks the court to exclude any comments from defense counsel—either

directly or indirectly—regarding the size of Ms. Hammond’s counsel’s law firm, the firm’s past
or present clients, or any other irrelevant attributes of Ms. Hammond’s counsel’s firm.
Defendants do not object to this request. Therefore, Ms. Hammond’s motion is granted, and the
court excludes any comments from defense counsel—either directly or indirectly—regarding the
size of Ms. Hammond’s counsel’s law firm, the firm’s past or present clients, or any other
irrelevant attributes of Ms. Hammond’s counsel’s firm.
2. Counsel’s references to death or illness of family members or personal
conclusions regarding the care or treatment of such family members
Ms. Hammond asks the court to exclude statements by defense counsel of their own
personal losses of loved ones. Ms. Hammond argues that pursuant to Fed. R. Evid. 403, the
danger of unfair prejudice outweighs any potentially relevance. EFM Specialists does not object
to this request. Drs. Maturo and Grounds state they generally agree with the request but believe
that it is drafted so vaguely as to include both permissible and impermissible arguments. Drs.
3

Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1401 (N.D. Ill. 1993).

4

Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987) (internal quotations omitted).

5

Luce v. United States, 469 U.S. 38, 41 (1984).

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Maturo and Grounds, however, do not specify what relevant evidence or arguments could be
encompassed by the request to exclude. It does not appear to the court that counsel’s statements
concerning the deaths or illnesses of counsel’s own family members or the care and treatment of
counsel’s family members would be relevant to any issues in this case. Therefore, the court
grants Ms. Hammonds’ request that these statements be excluded.
3. Opinion testimony by defendants
Ms. Hammond has informed the court that she withdraws this motion.
4. Defendants’ cumulative expert witness testimony
Ms. Hammond has informed the court that she withdraws this motion.
5. Suggestions of tort reform or a tort crisis or that this case affects Kansas
physicians
Ms. Hammond asks that the court exclude statements regarding the effect of this trial on
Kansas physicians, any indication that this trial could affect the medical community or jurors’
access to healthcare, or any comments regarding a tort crisis. EM Specialists does not object to
this request, but Drs. Maturo and Grounds argue that the request is drafted so vaguely that, if
granted, would prohibit both permissible and impermissible statements. Specifically, Drs.
Maturo and Grounds seek to ask potential jurors about their knowledge of the “medical
malpractice crisis” during voir dire. The court recognizes that some questions regarding
prospective jurors’ views on tort reform would be appropriate to determine whether they have
opinions that would affect their ability to be unbiased. However, inflammatory words or phrases
such as “medical malpractice crisis” or suggestions that this case would have far-reaching
impacts on the health care system or jurors’ access to health care are irrelevant and prejudicial to
Ms. Hammond and should be excluded. Ms. Hammond’s request to exclude these statements is
granted insofar as the court directs counsel not to use inflammatory language when asking jurors
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during voir dire about their views on personal-injury suits, tort reform, or similar topics. During
trial, all parties shall refrain from discussing the effect of this trial on Kansas physicians, any
indication that this trial could affect the medical community or jurors’ access to healthcare, or
any comments regarding a tort crisis. Ms. Hammond’s request to exclude is granted in part.
6. Testimony regarding whether Ms. Hammond sought timely medical treatment
following her discharge that is not adequately supported by competent evidence
Ms. Hammond seeks an order excluding any statements suggesting she failed to seek
timely treatment following her discharge at Shawnee Mission Medical Center. She argues
defendants have failed to present competent evidence showing the alleged failure to seek care
and treatment caused or contributed to her injuries. Defendants oppose this request—essentially
arguing that they have competent evidence to support this theory. Because the court cannot
resolve this issue on the present record, Ms. Hammond’s request to exclude these statements is
denied without prejudice. She may make a renewed motion at trial.
7. Character evidence
Ms. Hammond seeks an order excluding character evidence of any party in this case. As
an example, she states that defendants should not be allowed to present evidence or testimony
regarding their medical reputations or activities in the community because these subjects have no
bearing on the relevant issues in the case. Defendants do not oppose the request. Therefore, the
court grants Ms. Hammond’s request to exclude character evidence.
B.

EM Specialists’ Motions in Limine (ECF No. 74)6
1. Statements by Ms. Hammond’s family members concerning the possibility that
she could die

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Codefendants Drs. Maturo and Grounds join in EM Specialists’ motions in limine.

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EM Specialists asks the court to exclude any statements by Ms. Hammond’s family
members that it was a possibility Ms. Hammond could die, statements concerning administration
of last rites, or testimony concerning how Ms. Hammond’s condition has affected them
emotionally. EM Specialists argues this testimony lacks foundation and is prejudicial to the
defendants. Ms. Hammond opposes the motion. She argues that under Fed. R. Evid. 701, these
lay witnesses are permitted to give this type of opinion testimony. Rule 701 requires this type of
opinion testimony to be “(a) rationally based on the witness’s perception; helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Without knowing the exact testimony the witnesses plan to give, whether it is rationally
based on the witnesses’ perceptions, and the issues to which this testimony is relevant, the court
lacks the information necessary to rule on this request. While this testimony may ultimately be
excluded under Fed. R. Evid. 403 if its probative value is substantially outweighed by the danger
of unfair prejudice, the court will be in a better position to make that determination at the time of
trial. The court denies without prejudice the request to limit this testimony at this time.
Defendants may make a renewed objection at trial.
2. Statements by Ms. Hammond and her family members concerning the
possibility that she might not be able to bear children
EM Specialists makes a similar request with respect to testimony concerning Ms.
Hammond’s future ability to bear children. Ms. Hammond has now informed the court that she
withdraws her opposition to this request. Accordingly, the court grants the request to exclude the
testimony of Ms. Hammond’s family members concerning her future ability to bear children.
3. Hearsay statements by Ms. Hammond and her family members concerning the
amount of fluid removed from her abdomen during the appendectomy

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EM Specialists seeks an order excluding hearsay testimony by Ms. Hammond and her
family members regarding the amount of fluid Ms. Hammond’s physicians said was removed
from her abdomen during her appendectomy. Ms. Hammond does not dispute the general rule
that hearsay is inadmissible unless one of the exceptions to the hearsay rule applies. Rather than
enter an order merely restating the hearsay rule and exceptions thereto, the court denies without
prejudice the request to exclude these statements. The court will be in a better position to
evaluate specific hearsay objections at trial. Defendants may make renewed objections at trial.
4. Statements by Ms. Hammond’s family members related to how her condition
affected and impacted them
EM Specialists states Ms. Hammond’s family members gave deposition testimony that
her medical condition was difficult for them and other family members and that Ms. Hammond’s
husband testified that he was so uncomfortable with her pain level that he vomited. EM
Specialists argues this information should be excluded as irrelevant. Ms. Hammond argues that
the information is relevant because fact witnesses are allowed to testify as to Ms. Hammond’s
medical condition, treatment, emotional state, pain and suffering, and other injuries. She further
argues the impact of her medical care on her lifestyle and marriage is relevant to the damages
claim in this case. The court agrees with both parties. Testimony concerning fact witnesses’
observations of Ms. Hammond’s condition appears relevant to damages, but Ms. Hammond has
failed to set forth an argument as to how the impact of her condition on her family members
would bear upon issues in this case. For example, Ms. Hammond’s husband may testify about his
own observations regarding her pain level, but the fact that her pain level caused him to vomit
does not appear relevant. For this reason, EM Specialists’ request to exclude this evidence is
granted.

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5. Any and all expert opinions offered by Ms. Hammond that were not set forth in
her expert’s Rule 26 report or deposition
EM Specialists ask the court to exclude expert testimony not previously disclosed. Ms.
Hammond has now informed the court that she does not oppose this request. The court will apply
applicable procedural and evidentiary rules concerning the admission of expert testimony. The
court declines to issue an order merely restating the applicable Federal Rules of Civil Procedure
or the Federal Rules of Evidence. All parties may raise specific objections during trial, and the
court will take them up at that time.
6. Evidence of malpractice insurance
EM Specialists asks the court to prohibit Ms. Hammond from offering into evidence,
referring to, or otherwise alluding to facts indicating that defendants are insured. Ms. Hammond
does not oppose this request. The court therefore prohibits Ms. Hammond from offering
evidence of malpractice insurance into evidence or making statements suggesting defendants are
insured. This order does not encompass testimony or evidence that one of the defense experts
served on the board of directors for a medical malpractice insurance company. This information
bears upon potential bias.
7. Testimony by Ms. Hammond or her family that falls within the purview of an
expert witness
EM Specialists requests that the court exclude testimony by Ms. Hammond or her family
that falls within the purview of an expert witness. EM Specialists points to deposition testimony
of Ms. Hammond’s mother where she suggested that the nurse practitioner had “dropped the
ball” by not “problem solving . . . because they found an ovarian cyst.” Ms. Hammond does not
oppose the request to exclude lay witness testimony that would require scientific, technical, or
other specialized knowledge that is beyond the knowledge of a lay person. However, she opposes

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this request to the extent that attempts to prohibit fact witnesses from offering opinions rationally
based on their perceptions. The court does not construe EM Specialists’ request as encompassing
this type of testimony. EM Specialists’ request is granted insofar as the court will apply Fed. R.
Evid. 701, governing opinion testimony by lay witnesses. As the rule states, lay witnesses may
not give opinions based on scientific, technical, or other specialized knowledge within the scope
of an expert opinion.7 Without knowing the exact nature of these fact witnesses’ testimony and
upon what the testimony is based, the court declines to issue a more specific order at this
juncture. Defendants may raise specific objections during trial.
8. Misstatements concerning the standard of care
EM Specialists asks the court to exclude Ms. Hammond or her counsel from asking
questions or making statements implying or suggesting that defendants should be held to a
“safety” standard of care—that defendants should have made decisions based on what was safest
for Ms. Hammond. Ms. Hammond has now informed the court that she does not oppose this
request. Accordingly, the court prohibits Ms. Hammond or her counsel from asking questions or
making statements implying or suggesting that defendants should be held to a “safety” standard
of care.
9. Questions or statements suggesting defense experts must be 100 percent certain
in their opinions
EM Specialists requests the court prohibit Ms. Hammond or her counsel from asking any
questions or making any statements implying or suggesting that defendants’ experts must be 100
percent certain in their medical opinions or that these opinions must be based on a higher
certainty than reasonable medical probability. Ms. Hammond has now informed the court that
she does not oppose this request. Accordingly, all parties are prohibited from asking questions or
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Fed. R. Evid. 701(c).

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making statements suggesting expert witnesses must be 100 percent certain in their medical
opinions or that these opinions must be based on a higher certainty than reasonable medical
probability.
C.

Dr. Maturo and Dr. Grounds’ Motions in Limine (ECF. No. 77)8
1. Evidence of malpractice insurance
Drs. Maturo and Grounds ask the court to prohibit Ms. Hammond from offering into

evidence, referring to, or otherwise alluding to facts indicating that defendants are insured. Ms.
Hammond does not oppose this request. The court therefore prohibits Ms. Hammond from
offering evidence of malpractice insurance into evidence or making statements suggesting
defendants are insured. This order does not encompass testimony or evidence that one of the
defense experts served on the board of directors for a medical malpractice insurance company.
This information bears upon potential bias.
2. Evidence of salaries or compensation
Drs. Maturo and Grounds ask the court to prohibit Ms. Hammond from introducing
evidence of or relating to defendants’ salaries or compensation as medical doctors. Ms.
Hammond does not oppose this request. The court therefore prohibits Ms. Hammond from
offering evidence of or relating to defendants’ salaries or compensation into evidence.
3. Evidence of financial or social status
Drs. Maturo and Grounds ask the court to prohibit Ms. Hammond from referencing
Defendants’ financial or social status or net worth. Ms. Hammond does not oppose this request.
The court therefore prohibits Ms. Hammond from referencing defendants’ financial or social
status or net worth.
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Codefendant EM Specialists joins in Drs. Maturo and Grounds’ motions in limine.

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4. Expert opinions offered by fact witnesses
Drs. Maturo and Grounds request that the court exclude testimony from fact witnesses
not identified to offer expert opinions, or otherwise have no medical or specialized training from
testifying about: what they perceive as medically significant features about plaintiff’s physical or
mental conditions, the causes of plaintiff’s condition, or present or future medical needs of
plaintiff. Ms. Hammond opposes the motion to the extent it encompasses fact witnesses’
testimony rationally based on their perception. As previously stated, the court will apply Fed. R.
Evid. 701 regarding opinion testimony by lay witnesses. As the rule states, witnesses not
testifying as experts may not give opinions based on scientific, technical, or other specialized
knowledge within the scope of an expert opinion.9 Without knowing the exact nature of these
fact witnesses’ testimony and upon what the testimony is based, the court declines to issue a
more specific order at this juncture. Defendants may raise specific objections during trial.
5. Statements regarding the importance of this case
Drs. Maturo and Grounds ask the court to prohibit Ms. Hammond’s counsel from making
statements concerning the importance of this case or how honored he is to represent Ms.
Hammond. Ms. Hammond does not oppose this request. The court therefore prohibits all
counsel from making statements concerning the importance of this case or how honored they are
to represent their clients.
6. Testimony or statements of plaintiff’s counsel regarding the “standard of care”
or causation not supported by expert testimony
Dr. Maturo and Dr. Grounds seek an order excluding testimony or statements of Ms.
Hammond’s counsel regarding the “standard of care” or “causation” not supported by proper
expert testimony. Ms. Hammond has now informed the court she does not oppose this request.
9

Fed. R. Evid. 701(c).

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Accordingly, all parties are prohibited from eliciting testimony or making statements concerning
the standard of care or causation that are not supported by proper expert testimony.
7. Testimony or statements of plaintiff’s counsel relating to standard of care,
causation, or damages opinions beyond those disclosed in plaintiff’s expert
designation and confirmed at the deposition of plaintiff’s expert
Drs. Maturo and Grounds request that the court preclude Ms. Hammond from expanding
on the opinions of her experts and also preclude her experts from expanding or changing their
opinions regarding causation or medical expense damages. Ms. Hammond now informs the court
that she does not oppose this request. The court grants the request to exclude and precludes all
parties from expanding on the opinions of experts or eliciting testimony from experts that would
represent a change in their expert opinions.
8. Statements by Ms. Hammond’s family members related to how her condition
affected and impacted them
This request to exclude is nearly identical to EM Specialists’ request to exclude
addressed in Section B4. For the same reasons previously outlined, testimony concerning fact
witnesses’ observations of Ms. Hammond’s condition appears relevant, particularly to the issue
of damages, but Ms. Hammond has failed to set forth an argument as to how the impact of her
condition on her family members would bear upon issues in this case. For this reason,
defendants’ request to exclude this evidence is granted.
9. Evidence or statements referencing or suggesting the existence of any prior
claims or lawsuits against any of the defendants
Dr. Maturo and Dr. Grounds ask the court to prohibit Ms. Hammond from introducing
evidence relating to other alleged wrongdoings, claims made, or civil actions filed against
defendants. Ms. Hammond does not oppose this request. The court therefore prohibits Ms.

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Hammond from introducing evidence relating to other alleged wrongdoings, claims made, or
civil actions filed against defendants.
10. Evidence or statements of plaintiff’s counsel relating to claims or lawsuits
against any of defendants’ expert witnesses
Drs. Maturo and Grounds ask the court to prohibit Ms. Hammond from referencing
claims or lawsuits asserted against any expert witness expected to testify on behalf of any
defendant. Ms. Hammond does not oppose this request. The court therefore prohibits Ms.
Hammond from referencing claims or lawsuits asserted against any expert witness expected to
testify on behalf of any defendant.
11. Evidence or statements of plaintiff’s counsel relating to any medical bill that
does not represent actual loss or damages
Drs. Maturo and Grounds request that the court preclude Ms. Hammond from introducing
evidence of any portion of a bill that has been contractually adjusted, reduced, or otherwise
written off because these amounts are not part of Ms. Hammond’s damages. The parties expect
to prepare a stipulation on damages, reflecting the amounts billed and the amounts paid. Ms.
Hammond states that she generally does not oppose this request but reserves the right to later
challenge this request should the parties not reach stipulation regarding damages. Drs. Maturo
and Grounds’ request is granted insofar as the court precludes Ms. Hammond from introducing
evidence of any portion of a bill that has been contractually adjusted, reduced, or otherwise
written off because these amounts are not part of Ms. Hammond’s damages. The court will
revisit this issue should the parties not reach a stipulation regarding the amount of medical
damages.
12. Hearsay

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Drs. Maturo and Grounds seek an order excluding hearsay testimony by Ms. Hammond
and her family members regarding the amount of fluid Ms. Hammond’s physicians said was
removed from her abdomen during her appendectomy. Ms. Hammond does not dispute the
general rule that hearsay is inadmissible unless one of the exceptions to the hearsay rule applies.
Rather than enter an order merely restating the hearsay rule and exceptions thereto, the
court denies without prejudice the request to exclude these statements. The court will be in a
better position to evaluate specific hearsay objections at trial. Defendants may make a renewed
objection at trial.
Accordingly,
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine (ECF No. 78) is
granted in part and denied in part.
IT IS FURTHER ORDERED that Defendant EM Specialists, P.A.’s Motion and
Memorandum in Support of its Motions in Limine (ECF No. 74) are granted in part and denied
in part.
IT IS FURTHER ORDERED that Defendants Sharon L. Maturo, M.D. and Carrie A.
Grounds, M.D.’s Motions in Limine (ECF No. 77) are granted in part and denied in part.
IT IS SO ORDERED.
Dated this 2nd day of July, 2015, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

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